United States v. Tracy Gibson

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 10-5118

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

TRACY BERNARD GIBSON,

Defendant - Appellant.

Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Martin K. Reidinger,
District Judge. (1:09-cr-00026-MR-4)

Submitted: October 25, 2011 Decided: November 8, 2011

Before KING and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.

Affirmed in part; dismissed in part by unpublished per curiam
opinion.

James W. Kilbourne, Jr., DUNGAN LAW FIRM, P.A., Asheville, North
Carolina, for Appellant. Anne M. Tompkins, United States
Attorney, Laura L. Ferris, Assistant United States Attorney,
Charlotte, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

Tracy Bernard Gibson appeals the 240-month sentence

imposed following his guilty plea to conspiracy to possess with

intent to distribute cocaine base, in violation of 21 U.S.C.

§ 846 (2006). On appeal, Gibson argues that the district court

abused its discretion in denying his motion to withdraw his

guilty plea and that the 18 U.S.C. § 851 (2006) notice of prior

conviction was invalid. The Government seeks enforcement of the

appellate waiver provision in the plea agreement and dismissal

of Gibson’s second argument. We affirm in part and dismiss in

part.

Gibson first argues that the district court abused its

discretion in denying his motion to withdraw his guilty plea.

The district court may allow a defendant to withdraw his guilty

plea prior to sentencing if he “can show a fair and just reason

for requesting the withdrawal.” Fed. R. Crim. P. 11(d).

However, because there is “no absolute right to withdraw a

guilty plea, . . . the district court has discretion to decide

whether a fair and just reason exists.” United States v.

Bowman, 348 F.3d 408, 413 (4th Cir. 2003) (internal quotation

marks omitted); see United States v. Dyess, 478 F.3d 224, 237

(4th Cir. 2007) (reviewing denial of motion to withdraw guilty

plea for abuse of discretion). Upon review, we conclude that

the district court did not abuse its discretion in denying

2
Gibson’s motion to withdraw. See United States v. Moore, 931

F.2d 245, 248 (4th Cir. 1991) (enumerating six-factor balancing

test to determine propriety of permitting withdrawal); see also

United States v. Lambey, 974 F.2d 1389, 1394 (4th Cir. 1992) (en

banc) (stating that properly conducted plea colloquy “raise[s] a

strong presumption that the plea is final and binding”).

Accordingly, we affirm this portion of the appeal.

The Government asserts that the appellate waiver

provision in the plea agreement bars our consideration of

Gibson’s remaining argument. We review a defendant’s waiver of

appellate rights de novo. United States v. Blick, 408 F.3d 162,

168 (4th Cir. 2005). “A defendant may waive his right to appeal

if that waiver is the result of a knowing and intelligent

decision to forgo the right to appeal.” United States v. Amaya-

Portillo, 423 F.3d 427, 430 (4th Cir. 2005) (internal quotation

marks omitted); see United States v. General, 278 F.3d 389, 400

(4th Cir. 2002) (providing standard). Generally, if the

district court fully questions the defendant about the waiver

during the Federal Rule of Criminal Procedure 11 plea colloquy,

the waiver is valid and enforceable. United States v. Johnson,

410 F.3d 137, 151 (4th Cir. 2005). We will enforce a valid

waiver so long as “the issue being appealed is within the scope

of the waiver.” Blick, 408 F.3d at 168.

3
In his plea agreement, Gibson agreed to waive the

right to contest the conviction and/or the sentence except for

claims of ineffective assistance of counsel or prosecutorial

misconduct. Gibson asserts no error in the plea colloquy, nor

does he credibly challenge the validity of his appellate waiver.

Our review of the record leads us to conclude that Gibson’s

waiver was knowing and intelligent.

Turning to the scope of the waiver, we conclude that

Gibson’s challenge to his sentence based on the validity of the

§ 851 notice falls within the scope of the appellate waiver

provision. Thus, we dismiss this portion of the appeal.

Accordingly, we affirm the district court’s judgment

in part and dismiss the remainder of the appeal as barred by the

waiver provision in the plea agreement. We dispense with oral

argument because the facts and legal contentions are adequately

presented in the materials before the court and argument would

not aid the decisional process.

AFFIRMED IN PART;
DISMISSED IN PART